Roche v Minister for Industry and Commerce

• Jurisdiction: Ireland
• Judgment Date: 13 April 1973
• Neutral Citation: 1965 WJSC-HC 869
• Date: 13 April 1973
• Docket Number: No: 1141 P./1971
• Court: High Court

1965 WJSC-HC 869

THE HIGH COURT

No: 1141 P./1971

Roche v. Minister for Industry & Commerce

THOMAS C. ROCHE AND BULA LIMITED

.v.

THE MINISTER FOR INDUSTRY AND COMMERCE AND THE ATTORNEYGENERAL AND PATRICK WRIGHT

1 JUDGMENT of The President of The High Court delivered on the 13th day of April 1973

2 The Plaintiff Thomas C. Roche is a Company Director and Bula Limited is a Limited Company formed at his instance. The Defendant Patrick Wright was in March, 1971, owner in fee simple of certain lands at Nevinstown Navan in the County of Meath. By Agreement dated 18th March, 1971, the said Patrick Wright agreed to sell the said lands to the said Thomas C. Roche, and by a further agreement of the same date it was agreed between them that the said Thomas C. Roche should forthwith procure the formation of a limited company with a nominal share capital of£1,000,000, and that the said lands should be assured to that Company. The consideration was to be the sum of £700,000 of which£200,000 was to be satisfied by the allotment of 200,000 shares of£1 each in the Company, and the balance was to be paid in cash on the dates mentioned in the agreement.

3 The Plaintiff Company Bula Limited, although not having an initial share capital of £1,000,000, was formed in pursuance of the said agreement, and on 19th March, 1971 a conveyance of the lands to that Company was executed by Mr. Wright. Application was made to the Land Commission on 24th March, 1971, for their consent to the vestingof the lands in the Company under section 45 of the Land Act, 1965, but such consent has not yet been received.

4 The events leading up to the conveyance were somewhat as follows. A prospecting licence had been granted by the Minister for Industry and Commerce to Tara Exploration and Development Company Limited (which I shall refer to as "Tara") and prospecting had been carried out on these and other lands in the Navan area. Mr. Roche was aware of the issue of the prospecting licence, and of the fact that there had been drilling, and that minerals of value had been discovered. Results of the drillings had been published, and it seemed clear to him that there were minerals in workable quantities under Mr. Wright'slands.

5 Mr. Roche had a meeting with Mr. Wright, who was known to Mr. Roche's son in law. At this meeting Mr. Wright said that Tara had made an offer to purchase his lands, but he was perturbed, since he did not think that the price was sufficient. Mr. Roche inquired if he owned the minerals, and was told that he did. He asked if there was any order for compulsory acquisition, and was told by Mr. Wright that as far as he knew no order had been made to acquire the minerals compulsorily. Between 12th and 18th March there were meetings between their respective Solicitors, and on 18th March, 1971, they met at the offices of Messrs. Arthur Cox & Co., Solicitors for Mr. Wright. The agreement to sell was signed, and£50,000 was paid over.Later the second agreement providing for the formation of the Company was signed, and a further £150,000 was paid over. At that stage Mr. Roche had no knowledge of any order for the compulsory acquisition of the minerals under the lands.

6 On the afternoon of 18th March Mr. Roche and his Solicitor, Mr. Plunkett Dillon, went to the Department of Industry and Commerce, and there saw a Mr. Flynn, and told him of the purchase. The purpose of the visit was to inform the Department of the purchase, and of his intention to work the minerals under the lands, and to ask about what steps should be next taken. He believes that during the course of the interview Mr. Flynn told him that he believed that a compulsory acquisition order had been made in respect of the minerals under the lands.

7 Prior to the execution of the agreement to purchase Mr. Plunkett Dillon had visited the office of the Geological Survey twice, once about the 12th March, 1971, and again on the morning of the 18th. Mr. Plunkett Dillon had inquired if there had been any orders of any description affecting the lands of Nevinstown, and was told that there werenone.

8 It subsequently transpired that on 15th March, 1971, the Minister for Industry and Commerce had, with the consent of the Minister for Finance, made an order under section 14 of the Minerals Development Act, 1940, entitled the Minerals Acquisition (Nevinstown and otherTownlands, Co. Meath) Order, 1971, vesting in himself in fee, simple all minerals (other than minerals which, immediately before the date of the making thereof were State minerals) under a wide area, including the lands of Nevinstown. Notice of the making of this order was not published in Irish Oifigiuil until 23rd March, 1971, and at the time of the purchase from Mr. Wright the Plaintiff Mr. Roche was unaware of thisorder.

9 On 1st April, 1971, the Minister by virtue of the powers conferred on him by section 13 of the Minerals Development Act, 1940, undertook that subject to certain conditions he would grant to Tara or if so requested by Tara to Tara Mines Limited, provided that Tara Mines Limited was then a wholly-owned subsidiary of Tara, a State Mining Lease under Part IV of the Minerals Development Act, 1940, in respect of the State owned minerals in (inter alia) the townland ofNevinstown.

10 The Plaintiffs claim that the order of the Minister is ultra vires and null and void for a number of reasons; they also claim that the provisions of section 14 (1) of the Act of 1940 under which the order was made are repugnant to the Constitution, and as ancillary relief they claim injunctions against the Minister.

11 The arguments on behalf of the Plaintiffs were admirably summarised by Mr. O'Neill when opening the Plaintiffs" case, and I can do no better than quote from his written summary of his argument setting out the various grounds of criticism of the Minister's order.

12 They are as follows:

SUBMISSIONS on behalf of the Plaintiffs

13 1. The Order of 15th March 1971 was ultra vires Section 14because:

14 (a) A minerals acquisition order under Section 14 can relate only to the specific minerals which have appeared to the Minister to be on or under the land in question and it must specify the nature and extent of such minerals. The Order of 15th March 1971 relates to "all minerals" without specifying their nature or extent, and is accordingly ultra vires Section 14.

15 (b) It could not have appeared to the Minister that all the minerals under the lands of Nevinstown were not being worked.

16 (c) The Minister has no power to acquire minerals under Section 14 unless -

17 either he intends to work them himself (see Section 30); or he intends to grant a State acquired minerals licence under Section 22 (which commences whenever the Minister has acquired any minerals by Minerals Acquisition Order").

18 He has no power to acquire under Section 14 for the purpose of granting a State mining lease under Part IV because such a lease will not secure that the working of the minerals will be controlled by the State. Of the wording of Section 14: "The Minister is of opinion that it is desirable in the public interest............. that the working of such minerals should be controlled by the State", and Section 26: "If, in the opinion of the Minister, it is in the public interest that any State minerals should be granted by way of lease to any person".

19 The undertaking given by the Minister to Tara negatives any intention on his part when making the Order under Section 14, either to work the minerals himself or to grant a licence under Section 22. It is clear that the purpose of the Order was to enable the Minister to grant a lease to Tara, which is ultra vires Section 14.

20 (d) There were no materials on which the Minister could reasonably or properly have formed the opinion required by Section 14 that the working of all minerals under the lands of Nevinstown should be controlled by the State e.g. how could he form an opinion that the working of gravel or sand should be controlled by the State.

21 (e) There were no materials upon which the Minister could think it proper to acquire the minerals themselves under the lands of Nevinstown rather than to acquire an exclusive mining right in relationthereto.

22 2. Article 43 of the Constitution prevents the compulsory acquisition of property rights except insofar as the "delimitation" of the exercise of those rights is required by the exigencies of the common good.

23 (a) The exigencies of the common good could not require that the Minister should take the property of one person (an Irish citizen) and hand it over to another person (a foreign company). Therefore:

24 (i) Section 14 should not be construed as empowering him to doso;

25 or

26 (ii) If Section 14 does so empower him, it is unconstitutional under Article 43.

27 (b) The exigencies of the common good could not require, or make it necessary for, the Minister to acquire compulsorily allminerals under the lands of Nevinstown including gravel and send. This is much more than a delimitation of the exercise of his rights in his minerals, and is therefore unconstitutional under Article 43.

3. Obligation to act in accordance with

Constitutional and natural justice.

28 (a) The Minister's Order affects rights of property and therefore in making it he was bound to act judicially, i.e.

29 (i) to give notice to the owner of his proposal to make the Order under Section 14;

30 and

31 (ii) to give the owner an opportunity of making representations in relation to such proposal and being heard in regard thereto.

32 As the Minister did neither, the Order is bad as having been made without regard to the principles of Constitutional and naturaljustice.

33 (b) Alternatively, if Section 14 purported to entitle the Minister to acquire minerals without notice to or having given the owner an opportunity of being heard, it is contrary to constitutional and natural justice and is...